Pain and suffering belongs to a category of damages arrived at after an accident. The two types are special or economic damages and general or noneconomic damages. Pain and suffering belong to the latter group. While economic costs are made up of specific expenses such as that owed for medical treatment and lost wages, noneconomic damages refer to the physical, mental and psychological damage the victim faces both in the present and future. The degree of pain and suffering varies from one individual to another and is affected by the type and severity of the accident and resultant injuries.
Pain and Suffering Defined
Pain and suffering can be loosely defined as that which affects the fundamental happiness, comfort and hope the individual experienced before an accident. It has specific components:
- Physical pain: This component includes the physical pain the victim experiences in the short term after an accident as well as the pain that will persist into the future. The latter is generally defined by medical experts who give an opinion as to what pain the person is likely to experience long after the initial period.
- Mental anguish: This is a broad category that includes a long and varied list of emotions affected by the accident. Some emotions lead to psychological issues that may require treatment. As with the physical pain that exists after an accident, the mental anguish or negative feelings that one feels can live in the present and extend into the future. Some types of mental and psychological distress linked to an accident include:
- Loss of enjoyment
- Sexual dysfunction
- Decreased appetite
- Decreased energy
- Mood swings
- Agoraphobia or fear of leaving the house
- Past-traumatic stress disorder, also known as PTSD
Examples of Pain and Suffering
Let’s look at how pain and suffering arises through concrete examples. In one scenario, a man who supports himself and his family as a surgeon is involved in a serious, head-on collision. He suffers mild, transient traumatic brain injury and a crushed hand. The damage to his hand is so severe that his doctors have no alternative but to amputate it.
After the accident and a long period of rehabilitation, his concussion heals with slight memory problems that persist for two years. He adapts well to the use of a prosthetic hand. However, due to his injuries, he is no longer able to practice surgery, which was a profession he loved. The man becomes depressed and morose and refuses to interact socially with old friends, many of whom he met professionally. His sense of worth is vastly degraded and his family have a hard time adjusting.
In this example, the pain and suffering the individual feels is disastrous. As with many other victims of a serious accident, his level of activity and wellbeing is trampled and he requires years of psychotherapy. It is important that he be compensated for his loss. An experienced injury lawyer will present a strong case for proper reimbursement for the mental and psychological destruction his client undergoes.
Another example would be of a less severe accident but one that has extenuating repercussions. Let’s look at a situation where a woman is involved in a motor vehicle accident, resulting in whiplash. While most cases resolve within six months, she continues to have cervical pain due to movement. She has undergone physical rehab and improved so she is able to be active.
However, more intense activity, such as lifting a moderately heavy object continues to illicit neck pain. This precludes her from picking up her small children or engaging in sexual relations with her husband, which in the long-run puts a strain on her marriage. She becomes depressed and has trouble sleeping. She is entitled to compensation for the damage the accident caused to her life. Moreover, her husband can also file for compensation due to his loss of consortium.
Size of Settlement or Award for Pain and Suffering
It is important to understand what determines the size of the settlement or award for pain and suffering. The following factors are used:
- Medical treatment required: The type and intensity of the medical treatment used to restore the person’s wellbeing is a major factor in the size of the pain and suffering award they receive. The more intense the medical treatment, the higher the award. For instance, the need for surgery vastly outweighs casting a simple fracture or suturing a laceration.
- Injury severity: This goes hand in hand with the extent of medical treatment. A more significant injury such as a herniated disk outweighs a pulled muscle. While both may cause pain, the degree of pain and subsequent problems are much enhanced with a herniated disc.
- Recovery time: The length of time it takes to recover is also a factor in deciding the extent of pain and suffering compensation. A serious injury such as a burn may involve months in a burn center, multiple surgeries and long periods in a convalescent center.
- Injury repercussions: The extent of linked issues or repercussions influences the amount of pain and suffering damages. This includes such problems as depression, phobic behavior, PTSD and social malfunction. This often lingers long after recovery from physical injury.
- Scarring or disfigurement: Scarring is a significant component of pain and suffering. Although the physical reason for the scar has healed, the patient may be left with a visible reminder of the accident. For example, a facial scar can distort a person’s appearance and can be corrected by cosmetic surgery in many cases. However, cosmetic surgery is not always covered by health insurance. This must be taken into account when determining the amount of an award for pain and suffering.
- Believability of the plaintiff and attorney: The way the case is presented and the demeanor of the plaintiff are often important factors in a jury award.
How to Document Pain and Suffering
As with other financial claims in a lawsuit, pain and suffering requires documentation. Since pain and suffering does not involve discrete payments for medical care or lost wages as with other examples of economic loss, the documentation is different. Many injury attorneys ask their clients to keep a log of their emotional and physical wellbeing from the beginning. Other ways to document pain and suffering is to keep meticulous records of visits to a psychologist or other professional that deals with the emotional/psychological trauma of an accident.
Statute of Limitations
This is the period within which a lawsuit can be filed. In California, it is usually two years. However, if the suit is against a government agency, You must file what is called an administrative claim against the government entity within six months of the accident. The government has 45 days to let you know if the claim will be accepted. If it is denied, you have six months from the receipt of the denial to file a lawsuit.
When you do not get correspondence from the government saying your claim was denied, you have two years from the time of the accident to file a lawsuit. A personal injury lawyer will make sure you file on time. Without doing so, you claim will not be heard in a civil court.